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Tuesday, April 21, 2009

"Partial" bail bill aims to reduce "hardship" on defendants

State Sen. Jeff Wentworth has an interesting bill up today in the Texas Senate Criminal Justice Committee - SB 498 - which would allow counties to accept a partial cash bond from pretrial defendants "if the magistrate determines that requiring the defendant to deposit a cash bond or to procure a surety bond in the full amount of bail will impose an unreasonable hardship on the defendant."

Judges can already accomplish the same thing through "personal bonds," but many are loathe to do so for political reasons (i.e., fear of being labeled "soft on crime"). In that climate, giving judges this authority may help reduce needless pretrial incarceration and jail overcrowding without being seen as reducing or eliminating bail. One would expect opposition from the bail bond industry, but perhaps they'll be placated by the fact that "partial" bonds can come from surety bondsmen as well as in cash.

This is a thoughtful, commendable approach: Somebody brought Sen. Wentworth a good bill.

UPDATE: At the hearing, Sen. Wentworth said some counties had done this for years and the bill reacts to an Attorney General's opinion that said the practice was illegal. Judge Raymond Angelini said the same thing has been done in the federal system for many years. He said it would save the county money because defendants could use money they would otherwise spend on bail to pay for an attorney.

Sen. Hinojosa, though, said such savings could be offset if counties then have to pay to find that individual and take them back to jail, whereas right now that burden lies with the bail bondsmen. Judge Angelini said this would be a discretionary system and judges would not be required to use this mechanism.

Sen. Patrick said that California and New Jersey had tried this system and scrapped it, but Judge Angelini said Bexar County had used the system for years without significant problems. Keith Hampton from the Texas Criminal Defense Lawyers Association said a similar program also worked well in Travis County.

Andrea Marsh of the Texas Fair Defense Project said federal data showed defendants with these types of bonds were just as likely to appear in court as defendants with regular surety bonds. (Another witness contradicted her with a dueling study, testifying that the failure-to-appear rate was twice as high for partial-bail participants.) In addition, it's a myth, Marsh said, that bail bondsmen were out there catching large numbers of absconders - 90% of absconders in Houston, she said, are brought in by law enforcement officers, not surety bondsmen.

Lots of opposition signed up against this bill (160 people recorded their opposition without giving testimony!), including prominent judges from across the political spectrum, from Charlie Baird in Austin to Cynthia Kent in Tyler. Chairman Whitmire said he intended to leave the bill pending for the various parties to work on the language.

9 comments:

I just read the bill and I'm confused. It says only the court in which a case is pending can accept the partial bond. If the case is pending in a court and the defendant can't make bond, the judge can always lower the bond which is what we've done, oh, I don't know, FOREVER! It seems to me the only thing difference is the county getting another fee to collect.

I can see that critique, A.H., and particularly your point about the fees is well taken. But in Bexar County which Wentworth represents, they've got judges who seem intent on keeping the jail overcrowded because they think reducing bail would make them look soft on crime. Under this bill, "A release on bail in a partial amount is not a reduction in bail for purposes of Article 17.091" (emphasis added). So he's creating a mechanism to allow them to do the right thing while retaining political cover - that's how I read the bill, anyway.

To 12:36 - there's still plenty of bad stuff out there, too, but as an advocate I'm also trying to identify and promote the good ones.

Grits, you have no idea what you are talking about on this bill. If a bond is set at $10,000, for example, this bill would allow a judge to set the defendant free by posting something less than the $10,000. Say, $1,000. Well, that sounds mighty fine if you just want people out of jail.

But, Grits, when that person fails to appear in court and the bond is forfeited, that judge has just done two bad things: (1) no on is going to look for the defendant because there is no bondsman and (2) the county is short $9,000 because there is no remaining source to collect the forfeited bond. When a bondsman is held responsible for the nonappearance, he looks for the defendant and, if not relocated, pays the full $10,000 to the county.

This bill guts the bail bond business and provides an unfair ability for a judge to arbitrarily let people out of jail under circumstances that don't protect the public.

3:51, you write: "no on is going to look for the defendant because there is no bondsman" But you're ignoring Andrea Marsh's testimony that, e.g., in Houston, 90% of absconders were brought in by police officers, not bail bondsmen.

If it worked fine in Travis and Bexar before the AG opinion, and it's a local control bill, I see no problem with the concept.

"(2) the county is short $9,000 because there is no remaining source to collect the forfeited bond."

This type of thinking is a big problem with bail bonds. The purpose of bail is to secure the defendant's appearance. It isn't supposed to be source of revenue for the county. Bail bonds are about two things: 1.Making money for bondsman and 2. Making money for the county.

Bonds are set 10 times higher than they should be because people can go to a bondsman and only pay 10%. But, the bondsman keeps that money. If the bonds were set more reasonably where people could put their own money up they would then get it back when they showed up for trial. But, then the bondsmen wouldn't make any money and the county would make less. For example, if a bond were $1000 instead of $10,000 and the defendant didn't show up the county would only get $1000. But, setting the bonds so high that people have to go to a bondsman means the county gets 10 times a much money when the defendant doesn't show up.

Bail bonds should be about securing appearance only, not about making money for the county. But, like so many other things it's all about money, not justice.

5:01 got it exactly right. The law says the purpose of bond is not punishment but a way to make sure a defendant appears in court. The county is not "left short" of anything. To make that arguement is offensive to the constitutional system.

I'd also point out that, if you think that the county gets the "full amount," you've been talking to the wrong people. Most counties have a system in place that allows for much less than full amount. I've seen some with tables that show what percentage is due based on how long the individual is gone. In others, they simply enter into a settlement with the bondsman for a lesser amount. Either way, just as if this bill were passed and actually used, the county would still get enough money to cover expenses, which is all they really should get, just as they do now.

Two final points.1) Many attorneys post bonds, especially in larger cities. They do not employ people to go hunt people down. Their only security is that they also represent the person.

2) The county is still left with the option that they already have of filing a charge of bail jumping or failure to appear under Texas Penal Code 38.04. This bill does nothing to eliminate that.

I agree, bail bonds are about securing a defendant's appearance only, not about making money for the county or for the bondsman either. But, like someone said that like many other things it's all about money, not justice. It's true in many cases. But, the point is to find that reputed bail bond agent or a bail bond service provider that doesn't exploit you. Services from providers like Plotkin Bail Bonds (http://www.bail-bonds.com) are completely secured, that you can rely on!

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